SUPREME COURT OF ARIZONA
ARIZONA INDEPENDENT
REDISTRICTING COMMISSION, an
Independent Constitutional Body,
Petitioner,
vs.
JANICE K. BREWER, in her official
capacity as the Governor of the State of
Arizona; ARIZONA STATE SENATE;
RUSSELL PEARCE, in his official
capacity as Senate President,
Respondents.
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Supreme Court No. CV-11-0313
(Oral Argument Requested)
___________________________________________________________________
AMENDED PETITION FOR SPECIAL ACTION
___________________________________________________________________
OSBORN MALEDON, P.A. (00196000)
Mary R. O’Grady (011434)
Jean-Jacques Cabou (022835)
Kristin L. Windtberg (024804)
Joseph N. Roth (025725)
2929 N. Central Avenue, Suite 2100
Phoenix, Arizona 85012-2793
(602) 640-9000
mogrady@omlaw.com
jcabou@omlaw.com
kwindtberg@omlaw.com
jroth@omlaw.com
Attorneys for Petitioner
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................................................................... iii INTRODUCTION ..................................................................................................... 1 ISSUES PRESENTED............................................................................................... 3 JURISDICTIONAL STATEMENT .......................................................................... 4 FACTUAL AND PROCEDURAL BACKGROUND .............................................. 7 A. The Independent Redistricting Commission Was Created
By Voters to End Legislative Self-Interest in Redistricting
and Bring Independence to the Redistricting Process. .......................... 7 B. The Commission’s Hiring of a Mapping Consultant Sets
Off a Political Firestorm ........................................................................ 9 C. The Governor, Dissatisfied With the Commission’s Draft
Maps, Takes the Extraordinary and Unprecedented Step of
Removing the Chairperson in a Manner Evading Judicial
Review ................................................................................................. 13 ARGUMENT ........................................................................................................... 20 I. The Governor’s Actions and the Senate’s Concurring Vote
to Remove Commissioner Mathis Premised on the Legality
of the Draft Maps Violated Separation of Powers By
Impermissibly Usurping the Power of the Commission and
the Judiciary ........................................................................................ 21 A. The Commission is a Uniquely Independent
Constitutional Entity That is Entitled to Judicial
Protection From Usurpation of Its Powers ............................... 21 B. The Removal of Commissioner Mathis For Reasons
Related to the Commission’s Deliberations and
Substantive Mapping Choices Usurps the Power That
Voters Expressly Removed From the Hands of the
Governor and the Legislature.................................................... 23 i
II. The Governor Exceeded Her Limited “For-Cause” Removal
Authority by Failing to Meaningfully Follow the
Constitution’s Express Requirements ................................................. 27 A. The Constitution’s Legal Causes for Removal in
Subsection (10) are Substantive Limitations on the
Governor’s Power to Remove Independent
Commissioners .......................................................................... 28 B. Governor Brewer’s Removal of Chairperson Mathis
was Unlawful, Lacking Both Legal Cause and
Sufficient Specificity ................................................................ 31 i. The Constitution’s Express Legal Causes for
Removal Mean Something More Than What the
Governor Says They Mean ............................................. 31 ii. The Propriety of the Commission’s Draft Maps
is Not a “Legal Cause” Justifying Removal; the
Constitution Explicitly Removed the Governor
from That Role in Redistricting ...................................... 32 iii. The Vague Allegations of Open-Meeting
Violations Are Not a “Legal Cause” Capable of
Justifying Removal ......................................................... 34 CONCLUSION ........................................................................................................ 38 ii
TABLE OF AUTHORITIES
Page
Cases Ariz. Indep. Redistricting Comm’n v. Fields, 206 Ariz. 130, 75 P.3d 1088
(App. 2003) ....................................................................................................33
Arizona Minority Coalition for Fair Redistricting v. Arizona Independent
Redistricting Commission, 220 Ariz. 587, 208 P.3d 676 (2009) ..... 23, 24, 33
Arizonans for Fair Representation v. Symington, 828 F. Supp. 684
(D. Ariz. 1992) ...............................................................................................26
Brewer v. Burns, 222 Ariz. 234, 213 P.3d 671 (2009) ..........................................4, 5
Citizens Clean Elections Comm’n v. Myers, 196 Ariz. 516, 1 P.3d 706
(2000) .............................................................................................................24
Fairness & Accountability in Ins. Reform v. Greene, 180 Ariz. 582,
886 P.2d 1338 (1994) ......................................................................................6
Forty-Seventh Legislature of the State of Ariz. v. Napolitano,
213 Ariz. 482, 143 P.3d 1023 (2006) ..........................................................2, 6
Goddard v. Babbitt, 536 F. Supp. 538 (D. Ariz. 1982) ...........................................22
Holmes v. Osborn, 57 Ariz. 522, 115 P.2d 775 (1941) ................................... passim
Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935) ..................... 26, 28, 29, 32
Marbury v. Madison, 5 U.S. [1 Cranch] 137 (1803) .................................................7
Mathews v. Eldridge, 424 U.S. 319 (1976) .............................................................36
Mecham v. Gordon, 156 Ariz. 297, 751 P.2d 957 (1988) .........................................6
Morrison v. Olson, 487 U.S. 654 (1988) .................................................................28
People v. Shawver, 222 P. 11 (Wyo. 1924) ........................................................ 5, 35
Powell v. McCormack, 395 U.S. 486 (1969) .............................................................6
State ex rel. Woods v. Block, 189 Ariz. 269, 942 P.2d 428 (1997) ............ 21, 24, 25
iii
Constitutional Authority Ariz. Const. art. IV, pt. 1, § 1...................................................................................22
Ariz. Const. art. IV, pt. 2, § 1........................................................................... passim
Ariz. Const. art. VI, § 5 ..............................................................................................5
Rules Ariz. R.P.S.A. 1..........................................................................................................4
Other Authority Bryan A. Garner, A dictionary of Modern Legal Usage 564 (2d ed. 1995) ............32
iv
INTRODUCTION
After tiring of decades of incumbent-insulating political horse-trading as the
defining characteristic of the redistricting process, the citizens of Arizona amended
the Constitution with the goal of “ending the process of gerrymandering and
improving voter and candidate participation in elections by creating an
independent commission of balanced appointments,” the Independent Redistricting
Commission (the “IRC” or “Commission”). Official Title of Proposition 106
(2000) Publicity Pamphlet.1
The remaining role of the political branches in the redistricting process is
slim: the legislature’s leadership appoints four of the five commissioners from a
pool established by the Commission on Appellate Court Appointments, and the
legislature may provide official comment on the draft redistricting plan. Ariz.
Const. art. IV, pt. 2, §§ 1(6)-(8), (16). The Governor, with the consent of the
Senate, may remove a commissioner for specific, limited reasons: “substantial
neglect of duty, gross misconduct in office, or inability to discharge the duties of
office.” Id. § 1(10). That is it. The legislature cannot amend the redistricting
maps and the Governor no longer holds the power to veto them.
Understandably threatened that the voters have shifted an important part of
the legislative power out of their hands, the politicians have done all they can to
1
Petitioner’s Separate Appendix Tab 1 (“App. __”) (Proposition 106 (2000)
Publicity Pamphlet).
intrude on the work of the Commission and exert whatever influence they can on
the mapping process. But the Commission has weathered the political storm and
continued its work. On November 1, 2011, the Governor nevertheless took the
extraordinary step of invoking her removal authority to remove the Chairperson of
the Commission because, in her judgment, the Chairperson “failed to conduct . . .
business in meetings open to the public, and failed to adjust” the draft redistricting
maps as the Governor believes is required.2 Without providing evidence,
reasoning, or authority, the Governor then declared that, in her judgment, “the
foregoing constitutes substantial neglect of duty or gross misconduct in office.”3
This strange logic is applicable only in the world through the looking glass4 and
does not change that “our courts bear the ultimate responsibility for interpreting”
the Constitution. Forty-Seventh Legislature of the State of Ariz. v. Napolitano, 213
Ariz. 482, 485 ¶ 8, 143 P.3d 1023, 1026 (2006).
By her own words, the Governor has removed a sitting commissioner and
paralyzed the Commission’s ability to continue its work because she disapproves
of the manner in which the Commission has deliberated about and decided on its
single legislative responsibility, the drawing of congressional and legislative
2
App. 21 (11/1/2011 Acting Governor Bennett removal letter).
3
Id.
4
“‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it
means just what I choose it to mean – neither more nor less.’” Lewis Carroll,
Through the Looking Glass and What Alice Found There, in The Annotated Alice:
The Definitive Edition 213 (Martin Gardner ed., Norton Publishers) (2000).
2
districts. The Commission does not bring this petition to have the Court pass
judgment on what is merely shrewd political maneuvering. Rather, the
Commission petitions this Court because the political branches’ coordinated
actions undermine the integrity of Arizona’s Constitution; and only this Court is
positioned to return the rule of law.
ISSUES PRESENTED
The Constitution affords the Governor, with “concurrence of two-thirds of
the Senate,” a limited power to remove appointed commissioners only for three
specific causes – “substantial neglect of duty, gross misconduct in office, or
inability to discharge the duties of office” – and only after serving “written notice
and provid[ing] an opportunity to respond.” Ariz. Const. art. IV, pt. 2, § 1 (10).
On November 1, 2011, the Secretary of State, as acting Governor, called the
legislature to a Special Session, asking the Senate to concur in the removal of a
commissioner without specifying the constitutional basis for removal, but stating
that one alleged basis for removal was the Governor’s opinion that the
Commission’s draft, incomplete redistricting plan is unlawful. The issues
presented are:
1.
Is the Governor’s decision, and the Senate’s vote concurring in her
decision, to remove the Commission Chairperson invalid and in excess of their
legal authority because they violated the separation-of-powers requirements in
Article III of the Arizona Constitution?
3
2.
Is the Governor’s decision, and the Senate’s vote concurring in her
decision, to remove the Commission Chairperson invalid and in excess of their
legal authority because they violated the requirements in Article IV, Part 2, Section
1(10) for removing commissioners?
JURISDICTIONAL STATEMENT
A special action to this Court is the appropriate – and only – vehicle that will
provide the necessary relief from the Governor’s and Senate’s unconstitutional
actions. Their actions have undermined the independence of the Commission and
jeopardized the Commission’s ability to complete its work. The Commission
attempted unsuccessfully to secure a temporary restraining order from the Superior
Court to prevent the Chairperson’s unlawful removal.5 Now that the Senate has
acted, only this Court can provide the relief that is necessary to prevent permanent,
irreparable damage to Arizona’s independent redistricting process. This Court’s
intervention is needed because there is no “equally plain, speedy, and adequate
remedy by appeal.” Ariz. R.P.S.A. 1(a).
The relief the Commission requests is not unprecedented. This Court is the
entity with the authority and position to resolve a dispute between branches “over
their respective powers.” Brewer v. Burns, 222 Ariz. 234, 237 ¶ 8, 213 P.3d 671,
5
See Maricopa County Superior Court Case No. CV2011-019475. On
November 2, 2011, the Commission voluntarily dismissed the Superior Court action
without prejudice. App. 24 (Notice of Voluntary Dismissal).
4
674 (2009); Ariz. Const. art. VI, § 5(1) (granting Supreme Court original
jurisdiction over “mandamus, injunction and other extraordinary writs to State
officers”). In addition, the scope of the Governor’s and Senate’s removal power
under Subsection (10) is an “issue of first impression and statewide importance.”
Burns, 222 Ariz. at 237 ¶ 8, 213 P.3d at 674. As all parties would readily concede,
the importance of the redistricting process to the State of Arizona and the
respective powers of the branches of government to influence redistricting cannot
be understated. Nor can the need for a speedy resolution; the Commission is under
concrete time pressures to complete a redistricting plan in time for the next
election.6 Moreover, “the relevant facts are undisputed; the merits of this case turn
on the meaning of” Article III and Article IV, Part 2, Section 1(10). Id. at 237 ¶ 9,
213 P.3d at 674. The Governor’s purported reasons for removal are published and
the Senate’s vote is done; the Commission is now in limbo and in need of a Court
to say what the law is.
Furthermore, this Court has long held that it has jurisdiction to review
“[w]hether the Governor, exercising the power of removal, acquired jurisdiction to
act and proceeded to a finality without excess of jurisdiction.” Holmes v. Osborn,
57 Ariz. 522, 541, 115 P.2d 775, 784 (1941) (quoting approvingly from People v.
Shawver, 222 P. 11, 30 (Wyo. 1924)). When, as here, the Governor’s removal of a
6
See App. 26 (Declaration of R. Bladine ¶ 12).
5
commissioner “is authorized only for cause or for causes specified in the
Constitution” then “the court may inquire into the existence of the jurisdictional
facts.” Id. Those facts include “[w]hether the charges upon which the removing
power acted were legal cause for removal, or whether the cause was sufficiently
specified.” Id. (internal quotation marks and citation omitted). See also FortySeventh Legislature of State, 213 Ariz. at 485 ¶ 9, 143 P.3d at 1026 (noting that
Supreme Court has, “on many occasions, considered whether particular
gubernatorial actions exceeded a governor’s constitutional authority”).
The Commission seeks to have the Court exercise its “power to ensure that
the legislature [and the Governor] follow[] the constitutional rules” on removal.
Mecham v. Gordon, 156 Ariz. 297, 302, 751 P.2d 957, 962 (1988) (citing Powell v.
McCormack, 395 U.S. 486, 506 (1969)); see also Fairness & Accountability in Ins.
Reform v. Greene, 180 Ariz. 582, 587, 886 P.2d 1338, 1343 (1994) (noting that the
Court has the “duty of insuring that the constitutional and statutory provisions
protecting the electoral process . . . are not violated”) (internal quotation marks and
citation omitted).
The Governor’s actions and statements, and the Senate’s concurring vote,
reflect a belief that the express constitutional causes for removal mean whatever
she says they mean, and that the Constitution’s “for-cause” removal provision
imposes no limitation on her “oversight” of the Commission so long as she can
6
muster enough Senate votes.7 That cannot be. Consequently, the Commission
respectfully asks this Court “to say what the law is.” Marbury v. Madison, 5 U.S.
[1 Cranch] 137, 177 (1803).
FACTUAL AND PROCEDURAL BACKGROUND
A.
The Independent Redistricting Commission Was Created By
Voters to End Legislative Self-Interest in Redistricting and Bring
Independence to the Redistricting Process.
In November 2000, Arizona voters approved Proposition 106, which
amended the Arizona Constitution to create an Independent Redistricting
Commission to draw boundaries for legislative and congressional districts. Ariz.
Const. art. IV, pt. 2, § 1. Proposition 106 was aimed at “ending the practice of
gerrymandering and improving voter and candidate participation in elections by
creating an independent commission of balanced appointments.”8
Pursuant to the Arizona Constitution, the Commission’s five commissioners
are citizen volunteers; they are not candidates or officeholders and are not paid for
their service. Ariz. Const. art. IV, pt. 2, § 1 (3). The Commission is currently
composed of Commissioners Richard Stertz and Scott Freeman (Republicans) and
Jose Herrera and Linda McNulty (Democrats).9 These four commissioners
7
App. 22 (11/1/2011 Governor’s Press Release).
8
App. 1 (Proposition 106 Publicity Pamphlet).
9
App. 26 (R. Bladine Decl. ¶ 2).
7
unanimously selected Colleen Coyle Mathis, an Independent, to serve as the
Commission’s Chairperson.10
The Commission’s constitutionally endowed independence is its reason for
existence. The citizens’ initiative that created the Commission tasked it with
drawing boundaries for legislative and congressional districts with minimal
interference from incumbent officeholders. The qualifications for applicants, the
application screening process through the Commission on Appellate Court
Appointments, the prohibitions on the commissioners’ political involvement after
they complete their terms, the limited role of other State officials in Commission
operations, and the prohibition against considering incumbent candidate residences
during the redistricting process all protect the Commission’s independence from
politicians. Ariz. Const. art. IV, pt. 2, §§ 1(3)-(5), (10), (13), (15), (16)-(20). The
legislature’s limited role in the mapping process is to “make recommendations to
the independent redistricting commission by memorial or by minority report”
during the 30-day public comment period on draft maps. Id. § 1(16). The
Commission’s only obligation is to “consider” those comments. Id. Prop. 106 left
no role for the Governor in mapping. As a protection against a commissioner’s
serious misconduct, the Constitution includes a limited removal provision that
permits the Governor the limited authority to remove a commissioner, with the
10
Id.
8
concurrence of two-thirds of the Senate, for “substantial neglect of duty, gross
misconduct in office, or inability to discharge the duties of office.” Id. at § 1(10).
The uniquely tailored provisions of Article IV of the Arizona Constitution largely
insulate the Commission from interference from the other branches of government,
while still ensuring honesty, integrity, and transparency in the redistricting process
through a constitutional requirement that the Commission conduct all business “in
meetings open to the public.” Id. at § 1(12).
B.
The Commission’s Hiring of a Mapping Consultant Sets Off a
Political Firestorm.
Upon appointment, the present Commission diligently undertook the task of
redistricting. In order to perform the complicated work of drawing districts in
conformity with constitutional requirements, the Commission immediately hired
staff and consultants—including a mapping consultant to assist in the production of
the draft maps.11
Before selecting a mapping consultant, the Commission solicited proposals,
conducted interviews, and held numerous public meetings.12 While the initial
review of responses to the mapping consultant procurement occurred in executive
sessions because the documents were confidential, the names and interviews of the
mapping consultants were public and the Commission received extensive public
11
Id. ¶ 3.
12
Id.
9
feedback.13 During the public interviews, the Commissioners questioned
applicants on a number of issues including political bias and on the protections
they would employ, if retained, to ensure a transparent mapping process.14
On June 29, 2011, the Commission voted 3-2 to hire Strategic Telemetry as
the mapping consultant.15 The very next day, organized opposition began a
campaign of attacks on Strategic Telemetry, the Commission, and Chairperson
Mathis.16 The transcript of the Commission’s public meeting on June 30, 2011
reflects roughly 90 pages of public comments criticizing the selection of Strategic
Telemetry and the conduct of Chairperson Mathis.17 The attacks came exclusively
from one side of the political spectrum—those, for example, who opposed the
mapping consultant because it previously worked for Barack Obama and other
“progressive” candidates and feared that the company would inject a political bias
into the mapping process.18 Strategic Telemetry had addressed these concerns in
its public interview and made it clear that it would work exclusively at the
direction of the Commission.19 To address concerns, the Commission and
13
Id.
14
Id.
15
Id. ¶ 4.
16
Id. ¶ 5.
17
Id.
18
Id.
19
Id. ¶ 3.
10
Strategic Telemetry subsequently agreed to additional contract amendments to
limit its political work in Arizona and require the company to log all contacts to or
from third parties regarding the redistricting work.20
On the morning of July 21, 2011, Attorney General Tom Horne issued a press
release announcing an investigation of the Commission for alleged violations of
Arizona’s procurement rules and Open Meeting Law (“OML”).21 As part of his
investigation, the Attorney General issued Civil Investigative Demands (“CIDs”) to
all five Commissioners.22 The investigation raised questions concerning the
applicability of the OML to the Commission, which has a specific constitutional
mandate of openness different from the OML, is an issue of first impression in
Arizona. Despite efforts to avoid litigation, the Attorney General sued three of the
commissioners in Superior Court to enforce the CIDs.23 To seek clarity on the legal
question and to protect the independence of the body, the Commission brought a
declaratory judgment and special action seeking to resolve the constitutional
questions presented by the Attorney General’s actions.24 The Commission’s action
20
Id. ¶ 6.
21
App. 2. (07/21/11 Attorney General press release); App. 26 (R. Bladine
Decl. ¶ 7).
22
App. 26 (R. Bladine Decl. ¶ 8).
23
See Maricopa County Superior Court Case No. CV2011-016442.
24
App. 26 (R. Bladine Decl. ¶ 8); App. 4 (10/19/11 Plaintiff Arizona
Independent Redistricting Commission’s Consolidated Response to Motion to
11
was consolidated with Attorney General Horne’s action and is presently pending in
the Superior Court.25
Notwithstanding the political firestorm over the hiring of Strategic
Telemetry that threatened to engulf the Commission, its five commissioners
continued working diligently, in dozens of public meetings, to adopt congressional
and legislative maps that comply with state and federal legal requirements.26 The
Commission held public hearings across the state, developed a comprehensive
program for public input, and, based on constitutional requirements, data, and
public input, has drawn draft legislative and congressional districts.27 On October
3 and 10, 2011, respectively, the Commission adopted the draft congressional and
legislative maps, which are currently in a 30-day public-comment period.28 When
statewide hearings are completed, the Commission will begin its deliberations to
develop and approve final maps.
Dismiss and Motion for Summary Judgment); App. 5 (10/18/11 Plaintiff Arizona
Independent Redistricting Commission’s Separate Statement of Facts).
25
Attorney General Horne was disqualified from the action because of his
conflict of interest and Maricopa County Attorney Bill Montgomery is now
representing the State. App. 9 (10/27/2011 Minute Entry in CV2011-016442).
26
App. 26 (R. Bladine Decl. ¶ 9-10).
27
Id. ¶ 9.
28
Id. ¶ 10.
12
C.
The Governor, Dissatisfied With the Commission’s Draft Maps,
Takes the Extraordinary and Unprecedented Step of Removing
the Chairperson in a Manner Evading Judicial Review.
On October 26, 2011, in the midst of the current 30-day public comment
period on the draft maps and with summary judgment briefing on the OML dispute
pending on an accelerated schedule in Superior Court, Governor Brewer sent a letter
(the “October 26 Letter”) to the Commission and to all five commissioners
purporting to provide “notice” pursuant to Article IV, Part 2, § 1(10) of allegations
that all five commissioners had committed substantial neglect of duty and gross
misconduct in office.29 The commissioners were asked to individually respond to the
allegations by Monday, October 31, 2011 at 8:00 a.m., less than three business days
after they received the letter.30 The Governor simultaneously sent a separate letter to
the Chairperson providing her comments on the draft congressional map.31
The October 26 Letter vaguely alleges that the commissioners wrongfully
conducted non-public deliberations and that the draft congressional district maps did
not, in the Governor’s view, meet constitutional requirements. The Governor wrote
that she is “duty bound to ensure that Arizona’s redistricting process is
constitutionally sound and worthy of the full faith and confidence of Arizona
29
App. 6 (10/26/2011 Letter).
30
Id.
31
App. 7 (10/26/2011 Letter to Mathis).
13
voters.”32 The letter alleges that the Commission abandoned the required grid-like
pattern during the initial process of drawing the congressional districts and that
competitiveness was the Commission’s “first or primary factor” in drafting
Congressional District 9 in Maricopa County.33 The letter also touches on allegations
of non-public meetings and claims that the expenditure of Commission monies to hire
attorneys for its unpaid, volunteer commissioners was also improper.34 The letter
was not directed towards any single commissioner and provided no individualized
notice to the commissioners of substantial neglect or gross misconduct. But even
before responses were due, President Pearce and Speaker Tobin wrote to
Commissioners Stertz and Freeman, telling them that the President and Speaker
“stand with them” and “are confident that both [commissioners] are faithfully
following the law.”35
Despite the short time for responses, the Commission, and all five
commissioners, responded to the Governor’s letter by her established deadline of
8:00 a.m. on October 31, 2011.36 The Commission denied the allegation that state
32
App. 6 (10/26/2011 Letter).
33
Id.
34
Id.
35
App. 8 (10/27/2011 Pearce-Tobin letter).
36
App. 11 (10/31/2011 Commission response); App. 12 (10/31/2011 Chair
Mathis’s Response); App. 13 (10/31/2011 Commissioner McNulty’s Response);
App. 14 (10/31/2011 Commissioner Herrera’s Response); App. 15 (10/31/2011
14
and federal constitutional requirements had been abandoned in the creation of the
draft maps and conveyed its belief that the Governor was exceeding her authority in
suggesting that the Commission’s mapping work could justify removal.37 The
Commission urged the Governor not to participate in “further efforts to prevent the
Commission from completing its work and to end any consideration of removing any
Commissioners from office.”38 The commissioners individually responded as well
and denied knowingly deliberating or acting on a Commission matter with a quorum
of commissioners outside of a public meeting.39
Throughout the day on Tuesday, November 1, one day after the commissioners
submitted their lengthy and sincere responses, there were frequent public reports that
the Governor would call a Special Session and that removal of one or more
commissioners was imminent.40 Shortly after delivering a letter purportedly
removing the Chairperson to the Commission office, Acting Governor Bennett called
a Special Session of the legislature to begin at 4:45 p.m., seeking to remove
Commissioner Stertz’s Response); App. 16 (10/31/2011 Commissioner Freeman’s
Response).
37
App. 11 (10/31/2011 Commission response).
38
Id. at 1.
39
App. 12 (10/31/2011 Chair Mathis’s Response); App. 13 (10/31/2011
Commissioner McNulty’s Response); App. 14 (10/31/2011 Commissioner
Herrera’s Response); App. 15 (10/31/2011 Commissioner Stertz’s Response); App.
16 (10/31/2011 Commissioner Freeman’s Response).
40
See, e.g., App. 17.
15
Chairperson Mathis from the IRC. 41 This call was issued without further fact
finding, without providing any kind of response to any of the commissioners
regarding their individual letters, without advance notice to Commission counsel, and
without even providing sufficient notice for senators from rural districts to reach the
Capitol. Why Acting Governor Bennett? Because Governor Brewer, who had no
compunction about demanding responses from five constitutional officers over a
weekend, was in New York on a press junket to promote her new book.
The threats of removal – a removal unabashedly based on the substance of the
draft maps – undermine the independence of the Commission and threaten to cast the
once-a-decade redistricting process into damaging, irreparable uncertainty. The
Commission therefore proceeded to court late Tuesday afternoon with an application
for a Temporary Restraining Order. The Commission was compelled to move
quickly because any disruption in its redistricting work will make it extremely
difficult to meet the deadlines it faces to complete a redistricting plan in advance of
the next election cycle.42 Although the Governor sent no finding of substantial
neglect or gross misconduct to the Commission in advance of the Special Session, the
Commission applied for the Temporary Restraining Order, notified counsel for both
the Senate and Governor of the application, and attempted to see a judge to prevent
the Senate from taking action pending further judicial review. The assigned judge
41
App. 26 (R. Bladine Decl. ¶ 11).
42
Id. ¶ 12.
16
declined to take any action immediately. Within minutes of being turned away at the
Superior Court, the Commission proceeded to the Arizona Supreme Court and filed
its action with this Court, including a request for emergency injunctive relief.
While the Commission was applying for judicial relief, the Fourth Special
Session of the Fiftieth Legislature was being gaveled to order. The Special Session
convened at 5:20 pm.43 Within the first 10 minutes, the Senate suspended its rules
and truncated debate to two minutes per member.44 In a party-line vote, the Senate
concurred in the Governor’s decision to remove Commissioner Mathis.45 The Senate
adjourned sine die at 6:35 p.m., having done what it was called to do. The
accelerated voting foreclosed any opportunity for judicial review of the Governor’s
action before the Senate acted to remove Commissioner Mathis.
Hours after the Senate concurred in the removal, the Commission’s counsel
received copies of the documents underlying and authorizing the Senate’s session.
In a letter to Secretary Bennett, the Governor explained that she has “a duty to act
when a commission member (commissioner) has committed, in [her] judgment,
substantial neglect of duty, gross misconduct in office, or an inability to discharge
the duties of office.”46 Secretary Bennett was authorized by the Governor to
43
App. 19 (11/1/2011 e-mail from Chief Clerk).
44
Video of the Special Session is available at
http://azleg.granicus.com/MediaPlayer.php?view_id=13&clip_id=9535.
45
App. 20 (Senate Vote report).
46
App. 18 (11/1/2011 Governor Brewer letter to K. Bennett).
17
“execute a removal letter for Commissioner Colleen Mathis” and to “Call the
Legislature into Special Session” so that the Senate might consider concurrence in
the removal of a commissioner.47 The letter to Secretary Bennett did not identify
the cause for removal of Commissioner Mathis.
The removal letter executed by Acting Governor Bennett stated that “the
Constitution expressly confers on [the Governor] the authority to remove a
commission member, when in [the Governor’s] judgment, and with the
concurrence of two-thirds of the Arizona Senate, there has been substantial neglect
of duty, gross misconduct in office, or an inability to discharge the duties of
office.”48 The removal letter stated the cause as: having “failed to conduct the
Arizona Independent Redistricting Commission’s business in meetings open to the
public, and failed to adjust the map as necessary to accommodate all of the goals
set forth in Arizona Constitution Art. 4, pt. 2 § 1(14).”49
The Governor, in a statement released following the Special Session, stated
that the “Arizona Constitution provides that the Governor has direct oversight of
the Independent Redistricting Commission, as well as the ability to remove any
member due to ‘substantial neglect of duty’ or ‘gross misconduct in office.’”50
47
Id.
48
App. 21 (11/1/2011 Acting Governor Bennett removal letter).
49
Id.
50
App. 22 (11/1/2011 Governor’s Press Release) (emphasis added).
18
Moreover, speaking of the maps, the Governor stated that “[a] flawed redistricting
process has resulted in a flawed product.”51 Senate leadership has similarly stated
that the “State Senate concurred in an overwhelming vote” to remove
Commissioner Mathis because “she led a commission that failed . . . to produce
Constitutional maps.”52
Although the Senate and the Governor have been eager to speak publicly, in
generalities, about the reasons for removal, they have failed to provide any formal,
specific justification for it. Aside from the bare-bones letters described above,
neither the Commission, the commissioners, nor the public have been provided
with any explanation for the Governor’s claims of misconduct. It is clear, though,
that the Governor believes that the removal provision of Article IV, Part 2 Section
1(10) of the Arizona Constitution gives her an “oversight” role in the mapping
process, authority to determine the constitutionality of the draft maps, and the
power to remove a citizen-volunteer commissioner from office for drafting
allegedly unconstitutional maps. The Governor’s statements make it abundantly
clear that Commissioner Mathis was removed for one, and only one, reason—the
draft maps were flawed in the Governor’s eyes.
51
Id.
52
App. 23 (11/2/2011 Press Release of Majority Whip S. Pierce).
19
ARGUMENT
Through Prop 106, the voters of Arizona created a uniquely independent
constitutional entity whose purpose is drawing Arizona’s congressional and
legislative districts. The resulting amendment to the Constitution reflects a desire
for independence of the Commission and insulation from the political branches.
See Ariz. Const. art. IV, pt. 2, §§ 1(3)-(22). The Constitution affords the Governor
a specific but limited authority to remove an appointed commissioner but
otherwise excludes the office from the Commission’s work:
After having been served written notice and provided with an
opportunity for a response, a member of the independent redistricting
commission may be removed by the governor, with the concurrence
of two-thirds of the senate, for substantial neglect of duty, gross
misconduct in office, or inability to discharge the duties of office.
Id. § 1(10).
The Governor removed Commissioner Mathis purportedly because she
“determined that [Commissioner Mathis] failed to conduct . . . meetings open to
the public, and failed to adjust the grid map as necessary to accommodate all of the
goals set forth in Arizona Constitution Art. 4, Pt. 2, § 1(14).”53 The stated grounds
for removal, and the manner in which the Governor conducted the removal, far
outstripped the limited removal authority provided in the Constitution.
53
App. 21 (11/1/2011 Acting Governor Bennett removal letter).
20
The Governor’s actions to remove Commissioner Mathis and the Senate’s
concurring vote should be annulled because these actions exceeded the limited
removal authority under Article IV, Part 2, Section 1(10) in two respects: (1) the
Governor (with the Senate’s ratification) impermissibly usurped the legislative
power of the Commission to draw congressional and legislative districts and
arrogated to herself the judicial power to pass on the legality of draft, unfinished
maps; and (2) the written notice and stated reasons for removal failed to meet the
constitutional requirements listed in Subsection (10).
I.
The Governor’s Actions and the Senate’s Concurring Vote to Remove
Commissioner Mathis Premised on the Legality of the Draft Maps
Violated Separation of Powers By Impermissibly Usurping the Power of
the Commission and the Judiciary.
The branches of Arizona’s government are “separate and distinct, and no
one of such departments shall exercise the powers properly belonging to either of
the others.” Ariz. Const. art. III. Although the constitutional command of
separation of powers allows some flexibility, Article III prevents one branch of
government from usurping the functions properly belonging to another. See State
ex rel. Woods v. Block, 189 Ariz. 269, 276, 942 P.2d 428, 435 (1997).
A.
The Commission is a Uniquely Independent Constitutional Entity
That is Entitled to Judicial Protection From Usurpation of Its
Powers.
“The legislative authority of the state shall be vested in the legislature . . .
but the people reserve the power to propose laws and amendments . . . .” Ariz.
21
Const. art. IV, pt. 1, § 1(10). “The first of these reserved powers is the initiative.”
Id. at § 1(2).
And in November 2000, Arizona voters exercised their power by passing
Prop. 106 and creating the Commission to remove the task of redistricting from the
control of the political branches and place it into the hands of an independent
group of citizen-volunteers. To do so, the electorate not only amended the
Constitution to remove the task of mapping districts from the legislature, but also
to remove the Governor’s role in the legislative process by stripping the office of
its power to veto redistricting plans. See Ariz. Const. art. IV, pt. 2, § 1(17)
(declaring that the provisions governing the Commission and its legislative action
are “self-executing” and that the Commission “shall certify to the secretary of state
the establishment of congressional and legislative districts”); see also Goddard v.
Babbitt, 536 F. Supp. 538, 541 (D. Ariz. 1982) (describing Governor Babbitt’s
veto of redistricting bills after 1980 census).
“Independent” is thus not merely a convenient moniker. From top to
bottom, Prop. 106 enshrines in the Constitution an independent constitutional body
that entirely occupies the field of redistricting that formerly was the province of the
legislature and executive. Consequently, the Commission is due the same respect
for the boundaries of its powers as is any other branch of government. This Court
has already held as much in Arizona Minority Coalition for Fair Redistricting v.
Arizona Independent Redistricting Commission. There, the Court held that the
22
Commission “acts as a legislative body” whose “redistricting plan receives the
same deference as [the Court] afford[s] to other legislation.” 220 Ariz. 587, 595 ¶¶
19-22, 208 P.3d 676, 684 (2009). Indeed, the Court was careful to cabin the reach
of its review of the Commission’s redistricting work, noting that “the
commissioners perform legislative tasks of the sort [the Court] make[s] every
effort not to pre-empt.” Id. at 596 ¶ 28, 208 P.3d at 685. The Governor and Senate
have not discharged their duties with the same caution and the power the
Constitution reserves to the Commission is at risk.
B.
The Removal of Commissioner Mathis For Reasons Related to the
Commission’s Deliberations and Substantive Mapping Choices
Usurps the Power That Voters Expressly Removed From the
Hands of the Governor and the Legislature.
In passing Prop 106, the Arizona voters unequivocally placed the power and
responsibility of redistricting in the hands of the Commission. The Governor and
Senate have used the removal process set forth in the Constitution as a means to
reconstitute the veto power and obtain an overriding vote on the Commission.
Such an expansion of the removal power renders the “for-cause” language in the
Constitution meaningless and is a usurpation of the Commission’s authority.
When deciding if legislative action is a “usurpation,” courts evaluate: “(1)
the nature of the power being exercised; (2) the degree of control of another
branch; (3) the purpose of the legislation; and (4) the practical consequences of the
action.” Citizens Clean Elections Comm’n v. Myers, 196 Ariz. 516, 523-24 ¶ 30, 1
23
P.3d 706, 713-14 (2000) (quoting Woods, 189 Ariz. at 276, 942 P.2d at 435).
There can be little question that the removal of Commissioner Mathis qualifies as a
usurpation.
First, although “removal” is nominally an executive function, the exercise of
power to remove “for cause” is a “quasi judicial” function. Holmes, 57 Ariz. at
541, 115 P.2d at 784 (internal quotation marks and citation omitted). The reasons
given for Commissioner Mathis’ removal include substantive mapping issues, the
evaluation of which is typically reserved for the judiciary, see, e.g., Ariz. Minority
Coal. for Fair Redistricting, 220 Ariz. at 596-600 ¶¶ 34-45, 208 P.3d at 685-89
(considering legality of redistricting plan), and alleged violations of the OML. The
Governor well knows that the Commission, the commissioners, and the State are
currently parties to an ongoing lawsuit in which the parties dispute the scope and
meaning of the Commission’s obligation to “conduct business in meetings open to
the public.”54 See Ariz. Const. art. IV, pt. 2, § 1(12). The Governor’s removal
hijacks that judicial process. The Governor’s invocation of her removal authority
for reasons other than those expressly listed in the Constitution “show[s her] intent
to take over” a legislative and judicial function “by eliminating” the Commission
and the judiciary from having “any semblance of control.” Woods, 189 Ariz. at
277, 942 P.2d at 436.
54
App. 3 (Verified Compl. For Declaratory, Injunctive and Special Action
Relief).
24
It is likewise clear from the Governor’s stated reasons for removal that she
exercised the Commission’s exclusive legislative power by acting to assert
influence on the substance of the redistricting maps. Indeed, the Governor
contends that she has “direct oversight” of the Commission and she is “duty bound
to ensure that Arizona’s redistricting process is constitutionally sound.”55
The second and third factors ask whether the “degree of control” asserted
renders the Governor’s and Senate’s exercise of power a “cooperative venture or a
coercive influence” and whether the “intent” is to “establish[] . . . superiority” in
another branch’s area. Woods, 189 Ariz. at 277, 942 P.2d at 436 (internal
quotation marks and citations omitted).
There can be little doubt that the Governor’s use of the removal process to
influence the outcome of the mapping process is an intentionally “coercive
influence.” Under her expansive theory that the removal provision gives full
discretion to decide what qualifies as “substantial neglect” or “gross misconduct,”
the Governor views her removal power as limited only by the number of votes her
office can line up in support of removal, effectively giving the political branches a
controlling sixth seat on the Commission, empowered to overrule the redistricting
choices authorized by duly appointed commissioners. Neither the Governor,
through her removal power, nor the Senate, through its limited power of
55
See App. 6 (10/26/2011 Letter).
25
concurrence, can declare what the law is. Such a position offends the principles of
separation of powers and frustrates the purpose for which “for-cause” removal
provisions exist. Cf. Humphrey’s Ex’r v. United States, 295 U.S. 602, 629 (1935)
(upholding Congress’s power to condition the President’s authority to remove
independent commissioners in part because “it is quite evident that one who holds
his office only during the pleasure of another cannot be depended upon to maintain
an attitude of independence against the latter’s will”).
Finally, “the practical result” of leaving the Governor’s and Senate’s current
course of action unchecked cannot be overstated. If the Commission is
decapitated, by removal of its Chairperson at this point in the redistricting process,
Arizona voters of all political preferences face the very real possibility of being
deprived of the Commission-based redistricting process they voted for. Instead,
the next decade of Arizona elections could be governed by lines drawn by three
federal judges. See, e.g., Arizonans for Fair Representation v. Symington, 828 F.
Supp. 684 (D. Ariz. 1992). Additionally, even if a new Chairperson is appointed
and the Commission somehow manages to complete its work on-time, this new
Commission would still be operating under the threat of an un-checked removal
power, thus creating a chilling effect on the decisions made.
Under Woods or any other separation of powers rubric, a removal premised
expressly on the Governor’s opinion that the Commission’s draft maps are not
legal is nothing short of a claim that the removal provision, despite its limiting
26
language, is actually a re-constituted veto power – power intentionally stripped
from the Governor in Prop. 106. The Commission was created to prevent just this
sort of political power-grab. The Court’s intervention is urgently needed to
prevent the political branches from annexing authority over redistricting that voters
wisely took out of their hands.
II.
The Governor Exceeded Her Limited “For-Cause” Removal Authority
by Failing to Meaningfully Follow the Constitution’s Express
Requirements.
The removal power entrusted by the Constitution to the Governor is a vital
check on an otherwise independent commission. To be clear, that power is
substantial. But that power is not, as Acting Governor Bennett’s letter implies,
unqualified.56 The facts of this case indicate why that must be so – without
meaningful limits on executive power, the independence of the Commission would
be shattered, as it has been here. By specifically providing that the Governor may
act only in cases of “substantial neglect of duty, gross misconduct in office, or
inability to discharge the duties of office,” Article IV, Part 2, Section 1(10) of the
Constitution makes plain that the removal power is not a power the Governor may
exercise simply at her will. And when, as here, an executive entrusted with forcause removal power attempts to exercise that power capriciously and without
56
See App. 21 (11/1/2011 Acting Governor Bennett removal letter) (“[T]he
Constitution expressly confers on me the authority to remove a commission
member when, in my judgment,…there has been substantial neglect…”) (emphasis
added).
27
legal cause, the power and duty of the judiciary to intervene, void those actions,
and restore the rule of law is long-recognized by this Court and by the United
States Supreme Court.
A.
The Constitution’s Legal Causes for Removal in Subsection (10)
are Substantive Limitations on the Governor’s Power to Remove
Independent Commissioners.
The United States Supreme Court has previously recognized that meaningful
limits must exist on the power of the Executive to remove independent officers. In
1931, President Hoover nominated William Humphrey to fill the President’s old
seat as a commissioner of the Federal Trade Commission (“FTC”). Humphrey’s
Ex’r, 295 U.S. at 618; accord Morrison v. Olson, 487 U.S. 654, 694-96 (1988)
(confirming that executive’s power of appointment and removal can be limited).
Much like the Commission, the FTC’s founding legislation and debates “all
combine to demonstrate the congressional intent to create … a body which shall be
independent of executive authority, except in its selection, and free to exercise its
judgment without the leave or hindrance of any other official or any department of
the government.” Id. at 625-26.
Humphrey was appointed and served as an FTC commissioner but soon the
new President Roosevelt asked for his resignation because Roosevelt wanted to
appoint “personnel of [his] own selection” who agreed with his point of view. Id.
at 618 (citation omitted). The Commissioner refused to resign. President
28
Roosevelt then declared that Humphrey was removed and ceased paying his salary,
even though the FTC Act permitted removal only for “inefficiency, neglect of
duty, or malfeasance in office.” Id. at 619 (internal citation omitted).
Humphrey, and after his death his executor, challenged the President’s
actions at the Supreme Court, arguing that although the FTC Act (like the Arizona
Constitution) did not define the “for-cause” provisions, and the President’s power
to remove could not be unfettered, otherwise the FTC’s independence would be
lost. The Supreme Court agreed, recognizing that “illimitable power of removal is
not possessed by the President in respect of officers of the [independent] character
just named.” Id.at 629. As the Court unambiguously explained, “it is quite evident
that one who holds his office only during the pleasure of another cannot be
depended upon to maintain an attitude of independence against the latter's will.”
Id.
That an independent constitutional officer cannot be removed by another
without valid reasons, and that the validity of those reasons is judged by the
Courts, has also been previously and explicitly confirmed by this Court. In Holmes
v. Osborn, this Court considered the Governor’s putative removal of
commissioners of the Industrial Commission of Arizona (“ICA”). 57 Ariz. at 53940, 115 P.2d at 784. The ICA statute, much like the FTC Act at issue in
Humphrey’s Executor, and much like the Constitution’s removal provisions for the
Commission, provided that the “Governor at any time may remove any members
29
of the commission for inefficiency, neglect of duty, malfeasance, misfeasance, or
nonfeasance in office.” Id. at 535, 115 P.2d at 781 (internal quotation marks and
citation omitted). The commissioners removed in Holmes protested that they did
not know the specifics of the misconduct of which they were accused nor did they
have proper notice and time to prepare a defense. Id. at 539, 115 P.2d at 783. This
Court agreed and annulled the removal order, even though the Governor had
conducted some trial-like procedures, including the cross-examination of certain
witnesses. Id. at 533-34, 557-58, 115 P.2d at 780-81, 790.
This Court explained that the specifics of the removal requirements,
including the “common fairness” required in the removal process, were not up to
the Governor alone to interpret. To the contrary, “all these grounds, except the
first, imply wrongdoing, some act of omission or commission in office the law
required to be done which was not done or if done was done in an unlawful
manner.” Id. at 539-540, 115 P.2d at 783. Applying this principle, the Court held
that “[n]o act, therefore…is ground for removal unless that act so affects [a
commissioner’s] conduct in office as to constitute inefficiency, neglect of duty,
misfeasance, malfeasance or nonfeasance in the discharge of his official duties.”
Id. at 540, 115 P.2d at 783. Moreover, the Court explained that “[u]nless there is
some evidence showing the petitioners to be guilty of inefficiency, neglect of duty,
malfeasance, misfeasance or nonfeasance in office…the respondent had no
30
power or jurisdiction to remove the petitioners.” Id. at 557-58, 115 P.2d at 790
(emphasis added).
Said differently, this Court must decide “[w]hether the charges upon which
the removing power acted were legal cause for removal, or whether the cause was
sufficiently specified.” Id. at 541, 115 P.2d at 784 (internal quotation marks and
citation omitted). Not unlike a complaint in court, to adequately invoke the
removal power, the Governor’s stated basis for removal must at least facially show
that, if believed, the alleged conduct would qualify as a constitutional reason for
removal.
B.
Governor Brewer’s Removal of Chairperson Mathis was
Unlawful, Lacking Both Legal Cause and Sufficient Specificity.
Although Governor Brewer has wide discretion to determine what
procedures to follow absent constitutional direction, “[i]t is . . . absolutely essential
to [the Governor’s] jurisdiction to remove that there be evidence to sustain the
grounds” of removal. Id. at 540, 115 P.3d at 783 (emphasis added). She did not
do so here.
i.
The Constitution’s Express Legal Causes for Removal
Mean Something More Than What the Governor Says They
Mean.
Although Article IV, Part 2, Section 1 does not separately define the
meaning of “substantial neglect” or “gross misconduct,” these constitutional
provisions are not mere placeholders for whatever the Governor deems them to
31
mean; they are constitutional text that limit the scope of the removal power.
“Substantial neglect” requires the failure to act with even the slightest degree of
care, and “misconduct in office” generally refers to the common-law misdemeanor
of malfeasance, misfeasance, or nonfeasance in office. See Bryan A. Garner, A
dictionary of Modern Legal Usage 564 (2d ed. 1995). This Court has previously
said that malfeasance, misfeasance, and nonfeasance all “imply wrongdoing, some
act of omission or commission in office the law required to be done which was not
done or if done was done in an unlawful manner.” See Holmes, 57 Ariz. at 539-40,
115 P.2d at 783. And Subsection (10) requires not just “misconduct” – it limits the
removal to situations involving gross misconduct. Accordingly, the Governor
must have “sufficiently specified” the “charges upon which the” Governor and
those charges must qualify as gross or very wrongful conduct, not simply a
technical omission or commission.
ii. The Propriety of the Commission’s Draft Maps is Not a
“Legal Cause” Justifying Removal; the Constitution
Explicitly Removed the Governor from That Role in
Redistricting.
Governor Brewer has removed Commissioner Mathis from office over a
substantive difference of opinion on the merits of the Commission’s decision. In
other words, Governor Brewer has done here precisely what the U.S. Supreme
Court said that President Roosevelt could not do in Humphrey’s Executor and what
this Court said the Governor could not do in Holmes. See Humphrey’s Ex’r, 295
32
U.S. at 619 (quoting President Roosevelt’s saying that he sought resignation and
removal because he “[did] not feel that [Humphrey’s] mind and [his own] mind go
along together on either the policies or the administering [of the commission]”);
Holmes, 57 Ariz. at 553-54, 115 P.2d at 789 (“Any acts arising out of proceedings
before the commission in making awards may be reviewed by the courts and if
wrongful may be corrected in a judicial manner. It was never contemplated that
errors of judgment on the part of the commission … should be a ground of
removal but that they should be corrected by the courts.”) (emphasis added).
The Commission’s mapping work is legislative work, by a legislative body,
comprised of legislators who hold legislative immunity for that work. Ariz.
Minority Coal. for Fair Redistricting, 220 Ariz. at 594-95 ¶ 19, 208 P.3d at 683-84
(holding “the Commission acts as a legislative body”); Ariz. Indep. Redistricting
Comm’n v. Fields, 206 Ariz. 130, 138-39 ¶¶ 22-24, 75 P.3d 1088, 1096-97 (App.
2003). Although legislative immunity may have somewhat less relevance in a
gubernatorial removal proceeding, it stands to reason that the same actions
unequivocally covered by the legislative privilege -- the Commission’s mapping
decisions57 -- cannot be the source of charges of misconduct, much less “gross
misconduct.” Such decisions could no more be a basis for removal for “gross
misconduct” or “substantial neglect” than could a House Bill of questionable
57
In some cases, maps were (including the map of Maricopa County)
unanimously adopted and in all cases adopted by a majority of the Commission.
33
constitutional validity be a basis for impeachment of a legislator. The legality of
the maps or of any legislative enactment is properly for the judiciary and not a
subject of “punish[ment] by the executive department.” Holmes, 57 Ariz. at 554,
115 P.2d at 789.
iii. The Vague Allegations of Open-Meeting Violations Are Not
a “Legal Cause” Capable of Justifying Removal.
Although plainly not the gravamen of the Governor’s charges (or of the
Senate’s concurrence), the Governor’s October 26 Letter alleges in a general
fashion that “IRC commissioners had conversations with other IRC
commissioners, outside of a meeting open to the public” regarding the selection of
the mapping consultant.58 These allegations, which were leveled at all five
commissioners, were hopelessly vague, providing no specificity as to the dates on
which the alleged conversations occurred or to which commissioners the
allegations were directed. Acting Governor Bennett’s removal letter includes a
similarly vague assertion that Chairperson Mathis was removed, in part, because of
a failure to conduct business of the Commission in “meetings open to the public.”59
58
App. 6. (10/26/2011 letter). The contours of the Commission’s constitutional
mandate of openness is, as the Governor well knows, the subject of an ongoing,
expedited judicial action in Maricopa County Superior Court from which Attorney
General Horne was just disqualified because of a conflict of interest. App. 9
(10/27/2011 Minute Entry in CV2011-016442).
59
App. 21 (11/1/2011 Acting Governor Bennett removal letter).
34
No factual support was provided for this conclusion. Neither letter satisfies the
requirements of Proposition 106 for removing a commissioner.
This Court has the authority to review whether “the charges upon which the
removing power acted were legal cause for removal, or whether the cause was
sufficiently specified.” Holmes, 57 Ariz. at 541, 115 P.2d at 784 (quoting
approvingly from Shawver, 222 P. at 30).
Among the many constitutional minima explained in Holmes as applying to
Arizona gubernatorial removal proceedings is that the Governor may not use her
power to remove for cause unless the “cause [is] sufficiently specified.” Id. at 541,
115 P.2d at 784 (internal quotation marks and citation omitted). Without “some
evidence” of enumerated misconduct, the Governor cannot invoke her removal
powers. Id. at 557-58, 115 P.2d at 790. Indeed, an important part of the basis for
the holding in Holmes was that “[t]he petitioners very justly complain[ed] of the
indefiniteness and uncertainty of the charges. They were entitled to know in
advance what they were charged with in order to prepare their defense.” Id. at 539,
115 P.2d at 783. By its terms, the Constitution requires the same from the
Governor here. See Ariz. Const. art. IV, pt. 2, § 1(10) (requiring written notice and
an opportunity to respond).
Just as the notice provided in Holmes was constitutionally inadequate, it was
similarly inadequate for the Governor here to simply ask all commissioners to
respond to a vague set of allegations that there had been conversations outside of
35
public meetings and that the draft, unfinished maps did not comply with law. At a
minimum, the Governor was required to explicitly state the legal cause for each
alleged violation as to each individual commissioner, and the acts or omissions that
support the finding that cause exists. See Holmes, 57 Ariz. at 539-540, 115 P.2d at
785-860. As the Court in Holmes made clear, the notice and hearing required must
have substantive content beyond the mere formality the Governor has offered the
Commission’s commissioners here. Id. at 539, 115 P.2d at 783; cf. Mathews v.
Eldridge, 424 U.S. 319, 333 (1976) (in due process context, the most “fundamental
requirement” is “the opportunity to be heard at a meaningful time and in a
meaningful manner” (internal quotation marks and citation omitted)). The
constitutional inadequacy of the Governor’s October 26 letter unfairly hindered the
commissioners’ ability to meaningfully respond.
Moreover, Acting Governor Bennett’s letter removing Mathis as
Chairperson provides only the conclusory statement that either substantial neglect
of duty or gross misconduct in office occurred (the letter did not specify which)
and that Commissioner Mathis “failed to conduct the Arizona Independent
Redistricting Commission’s business in meetings open to the public.”60 The letter
gives no factual support for any of its conclusions. Because of the unresolved legal
issues concerning the Commission’s public meeting requirements, any good faith
60
Id.
36
analysis of an alleged public meeting violation should await the resolution of the
court proceeding. On its face, the letter fails to establish that removal from office
was justified under Proposition 106.
For Proposition 106’s removal provision to have meaning, the Governor
must provide the factual basis supporting the conclusion that “substantial neglect
of duty” or “gross misconduct” occurred. The Senate would need this information
to meaningfully concur in the decision, but there is no evidence that the Senate was
provided anything other than Acting Governor Bennett’s letter.61 Without
establishing the factual basis for the Governor’s decision, the high standards that
Proposition 106 establishes to remove Commissioners are meaningless. The
Governor’s power to remove becomes unchecked, provided that she has the votes
in the Senate.
Finally, even if the alleged violations of the constitutional mandate of
openness were factually supported, such a violation would not suffice as a basis for
the exercise of the Governor’s for-cause removal power. As this Court in Holmes
held, simply because a requirement appears in the statute does not mean that its
violation provides cause for removal. 57 Ariz. at 542, 115 P.2d at 784 (holding
that even though “it is provided that ‘no commissioner shall hold any office of trust
or profit, or engage in any occupation or business other than his duties as such
61
App. 19 (11/1/2001 e-mail from Chief Clerk).
37
commissioner,’ if he does, it is not made a ground of removal”) (citation omitted).
To qualify as a “gross misconduct,” a violation of public meeting requirements
would need to be particularly egregious. The Commission’s independence is
undermined if a Governor may use the slightest error to justify removing a
commissioner from office.
CONCLUSION
The political branches’ exploitation of a narrow removal power cannot be
allowed to wrest from the Commission its constitutional authority to independently
manage the redistricting of Arizona’s congressional and legislative districts.
Because the Governor and the Senate have acted far outside their jurisdictional
bounds, the Commission respectfully urges this Court to nullify the removal of
Commission Chairperson Colleen Coyle Mathis.
Respectfully submitted this 4th day of November, 2011.
OSBORN MALEDON, P.A.
By /s/ Mary R. O’Grady
OSBORN MALEDON, P.A. (00196000)
Mary R. O’Grady (011434)
Jean-Jacques Cabou (022835)
Kristin L. Windtberg (024804)
Joseph N. Roth (025725)
Grace E. Campbell (028661)
2929 N. Central Avenue, Suite 2100
Phoenix, Arizona 85012-2793
Attorneys for Petitioner
3920118
38
SUPREME COURT OF ARIZONA
ARIZONA INDEPENDENT
REDISTRICTING COMMISSION, an
Independent Constitutional Body,
Petitioner,
vs.
JANICE K. BREWER, in her official
capacity as the Governor of the State of
Arizona; ARIZONA STATE SENATE;
RUSSELL PEARCE, Senate President,
Respondents.
) Supreme Court No. CV-11-0313
)
)
)
)
)
)
)
)
)
)
)
)
)
____________________________________________________________________
CERTIFICATE OF SERVICE
____________________________________________________________________
OSBORN MALEDON, P.A. (00196000)
Mary R. O’Grady (011434)
Jean-Jacques Cabou (022835)
Kristin L. Windtberg (024804)
Joseph N. Roth (025725)
2929 N. Central Avenue, Suite 2100
Phoenix, Arizona 85012-2793
(602) 640-9000
mogrady@omlaw.com
jcabou@omlaw.com
kwindtberg@omlaw.com
jroth@omlaw.com
Attorneys for Petitioner
I hereby certify that on November 4, 2011, Petitioner’s Amended Petition
for Special Action was electronically filed with the Clerk’s Office and pursuant to
ARCAP Rule 4(c), copies of the Petition were sent via e-mail (as agreed) to:
The Honorable Janice K. Brewer
c/o Lisa T. Hauser
Gammage & Burnham PLC
lhauser@gblaw.com
Joseph Sciarrotta, Jr.
jsciarrotta@az.gov
Arizona State Senate
Senator Russell Pearce
c/o Gregory Jernigan
Arizona State Senate
1700 W. Washington (Rm. 206)
Phoenix, AZ 85007
gjernigan@azleg.gov
Paul K. Charlton
Kiersten A. Murphy
Gallagher & Kennedy, P.A.
paul.charlton@gknet.com
kam@gknet.com
Attorneys for Commissioner Colleen
Mathis
Andrew S. Gordon
Roopali H. Desai
Coppersmith Schermer & Brockelman PLC
agordon@csblaw.com
rdesai@csblaw.com
Attorneys for Commissioner Linda McNulty
Timothy A. Nelson
Tim Nelson, PLLC
tim@timnelsonpllc.com
Attorneys for Commissioner Jose
Herrera
Respectfully submitted this 4th day of November, 2011.
OSBORN MALEDON, P.A.
By/s/Jean-Jacques Cabou
Jean-Jacques Cabou
Attorneys for Petitioner
3923108
2
SUPREME COURT OF ARIZONA
ARIZONA INDEPENDENT
REDISTRICTING COMMISSION, an
Independent Constitutional Body,
Petitioner,
vs.
JANICE K. BREWER, in her official
capacity as the Governor of the State of
Arizona; ARIZONA STATE SENATE;
RUSSELL PEARCE, Senate President,
Respondents.
) Supreme Court No. CV-11-0313
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____________________________________________________________________
CERTIFICATE OF COMPLIANCE
____________________________________________________________________
OSBORN MALEDON, P.A. (00196000)
Mary R. O’Grady (011434)
Jean-Jacques Cabou (022835)
Kristin L. Windtberg (024804)
Joseph N. Roth (025725)
2929 N. Central Avenue, Suite 2100
Phoenix, Arizona 85012-2793
(602) 640-9000
mogrady@omlaw.com
jcabou@omlaw.com
kwindtberg@omlaw.com
jroth@omlaw.com
Attorneys for Petitioner
Pursuant to RPSA 7(e), the undersigned certifies that Petitioner’s Amended
Petition for Special Action filed this date complies with that Rule. The Petition is
double spaced, utilizes 14-point proportionally spaced Times New Roman
typeface, and contains 8,548 words.
Respectfully submitted this 4th day of November, 2011.
OSBORN MALEDON, P.A.
By/s/Jean-Jacques Cabou
Jean-Jacques Cabou
Attorneys for Petitioner
3923108
2